Sudhir Shah

It is always good to be attached to your roots! No matter how far the bird flies, it comes back to its nest at dusk. Indians residing abroad have a strong emotional bond to their mother country, and desire to stay connected and even participate in its development. For such persons, ease of travel to India is an important consideration. Foreigners are required to obtain a visa to enter India through air, land, or water. At the port of entry, an immigration check is conducted, which starts with the traveler answering questions on an arrival card, formally known as a Disembarkation Card, such as name, age, sex, nationality, place of birth and current address, intended address in India, and purpose and duration of stay to India. The foreign national has to furnish his passport, visa, disembarkation card and other relevant documents for scrutiny. Of course, increased security is inevitable in today’s climate. Nevertheless, many Indians residing abroad have long sought to return to India with greater ease.

The Constitution of India provides for a single forn of citizenship. Article 9 of Constitution specifically prohibits dual citizenship to any of its citizen who acquires foreign citizenship. The Citizenship Act, 1955 is designed to regulate the procedures for the acquisition, renouncement, and termination of Indian citizenship. The government of India has responded to concerns of Indians residing abroad for easier access to India and greater ability to enter into transactions relating to real property in India by enacting schemes for persons of Indian origin (“PIO”), known as the “OCI Card Scheme,” and the “PIO Card Scheme.” Although these schemes do not entitle a PIO to dual citizenship of India, they provide many valuable benefits.

Overseas Citizenship of India (OCI)

In September 2000, the government of India established the High Level Committee on the Indian Diaspora under the Chairmanship of Dr. L. M. Singhvi. The Committee submitted its report to the Prime Minister on January 8, 2002. Based on the recommendations of the Committee, the government of India decided to provide for Overseas Citizenship of India (OCI). The OCI Scheme took effect on December 2, 2005 through the addition of section 7A, 7B, 7C and 7D to the Citizenship Act, 1955. Although it may be referred to as dual citizenship, Overseas Citizenship of India is not dual citizenship of India and OCI card holders are not at par with Indian citizens.

Eligibility to become an Overseas Citizen of India

A foreign national who was eligible to become citizen of India on January 26, 1950 or was a citizen of India anytime thereafter, or belonged to a territory that became part of India after August 15, 1947, provided that his/her country of citizenship allows dual citizenship in some form or other, is eligible to become an Overseas Citizen of India. Minor children and/or grandchildren of such persons are also eligible to become Overseas Citizen of India. However, if the applicant has ever been a citizen of Pakistan or Bangladesh, then he/she will not be eligible for an OCI status.

The foreign national spouse of an eligible person can apply for OCI status only if he/she is eligible in his/her own capacity. Also, foreign-born children of Persons of Indian Origin are eligible to obtain an OCI card only if either of the parents is eligible to become an OCI. If both parents are Indian citizens, hold Indian passport and their child is a citizen of another country by birth, then such child cannot become an overseas citizen of India. However, such child is eligible to apply for a Person of Indian Origin Card. After the child turns 18 years old, he/she can apply for an OCI Card.

A person registered as an OCI is eligible to apply for Indian citizenship under section 5(1)(g) of the Citizenship Act, 1955 if he/she is registered as an OCI for five years and has resided in India for at least one year out of the five years before making such application. However, such person would have to renounce foreign citizenship because there is no provision of dual citizenship in India.

Benefits of an OCI Card

Section 7B of the Citizenship Act, 1955 confers certain benefits on holders of an OCI Card, such as:

• An OCI Card holder does not require a visa to visit India. An OCI Card itself is a multiple entry, multi-purpose life long visa to visit India.
• An OCI Card holder is exempted from periodic registration at the FRRO or the local police authorities regardless of the extent of stay in India.
• An OCI Card holder is issued for life and has no expiry date.
• An OCI Card holder and his/her family can use the NRI quota to obtain admission in educational institutions in India.
• An OCI Card holder can work and accrue salary from an Indian employer.
• An OCI Card holder may acquire, hold, transfer and dispose of immovable property in India except agricultural or plantation property.
• A PIO card holder may enjoy similar facilities under various housing schemes of Life Insurance Company (LIC), the State Government or other government agencies as provided to non-resident Indians (NRIs).
• At Immigration check posts, there are special counters for PIO and OCI card holders for speedy clearance.
• A PIO or OCI card holder is not obliged to pay extra fees applicable to foreign nationals at tourist sites such as national historical monuments.

Restrictions on an Overseas Citizen of India

• An OCI Card holder is not entitled to an Indian passport.
• An OCI Card holder cannot vote in India.
• An OCI Card holder cannot be a government employee.
• An OCI Card holder cannot be a candidate for Lok Sabha, Rajya Sabha, Legislative Assembly, and Legislative Council.
• He/she cannot hold constitutional posts such as that of President of India, Vice President of India, Judge of Supreme Court or High Courts of any state in India.
• An OCI Card holder cannot buy agricultural or plantation property in India. However, such persons can inherit the same and also sell or transfer such agricultural/plantation land in India.

Documents required for an OCI Card

• The application form for an OCI Card is divided into two parts. Form XIX Part A of the application form must be submitted online. It can be downloaded from the website http://www.mha.nic.in. After submitting the same, Form XIX Part B of the application form can be downloaded online and then filled in by hand in capital letters.
• A photocopy of the first and last page of the presently held foreign passport.
• In case the application is filled in India, an applicant must provide a copy of a valid visa to India or a residential permit for a minimum valid period of three months and copy of the all the pages of the Registration Certificate issued by the FRRO.
• Evidence of self or parents or grand parents,
o Being eligible to become a citizen of India at the time of commencement of the Constitution; or
o Belonging to a territory that became part of India after August 15, 1947; or
o Being citizen of India on or after January 26, 1950.
o These documents could include:
• Copy of the Indian passport; or
o (ii) Copy of the domicile certificate issued by the competent authority; or
o (iii) Any other proof as applicable.
• Evidence of relationship with the parent/grand parent, if Indian origin is claimed mainly on such relationship.
• Person of Indian Origin card holder must submit proof of being one. An attested photocopy of a PIO Card must be submitted along with the application.
• Four recent passport sized photographs with light colored background.
• An application fee of US $275 or equivalent in local currency through a bank demand draft payable in favour of “Pay and Accounts Officer (Secretariat), Ministry of Home Affairs” at New Delhi. PIO Card holders must pay an application fee of US $ 25 or equivalent in local currency. Should the application be filed in India, a fee of Rs.14,230/- is to be paid by demand draft and PIO Card holder needs to pay Rs.1,290/- in the same manner. In case of a minor PIO Card holder an amount Rs.7000/- is to be paid. There is no provision for a reduced or no fee OCI Card.
• Two photocopies of the Demand Draft paid for the OCI Card.
• A photocopy of the Surrender Certificate, in case the applicant was ever an Indian citizen and renounced Indian citizenship to become a foreign national.

Registration as an Overseas Citizen of India

An applicant who resides outside India should submit his application either to an Indian Embassy or Consulate of India having jurisdiction over the country of which the applicant is a citizen. If the applicant is not living in his/her country of citizenship, then the application may be submitted to either an Indian Embassy or Consulate of India having jurisdiction over the country where the applicant is ordinarily resident.

If a person wants to apply for an OCI Card while he/she is staying in India, then it may be done either by submitting the application in person or by sending it through Speed Post or Registered Post. The application may be filed at the Ministry of Home Affairs (MHA). Applicants can also file their applications with the respective Foreigners Regional Registration Officers (FRROs) in Delhi, Mumbai, Chennai, Kolkata, Amritsar, Hyderabad and Bengaluru.

Once the application is filed, there is a preliminary scrutiny of the submitted documents, after which the Indian Mission (Embassy) registers the applicant as an OCI and refers the case to Ministry of Home Affairs, India for further verification and inquiry. Should any adverse information be found during the preliminary scrutiny, the case would be referred to the Ministry of Home Affairs, New Delhi, India (“MHA”). The MHA may approve or reject the grant of registration within 120 days from the date of the receipt of the application. If the grant of registration as an OCI is approved by the MHA, the Indian Mission/Post shall register the person as an OCI.

If the Indian Mission, after preliminary scrutiny, registers the applicant as an OCI, the application shall be furthered to the MHA for additional verification and inquiry. During the verification, if any adverse information comes to light, the registration of the applicant as an OCI may be cancelled under section 7D of the Citizenship Act, 1955. In case the application is filed in India itself, then the registration of the applicant as an OCI would be done by the MHA and the above stated procedure would be followed. The complete procedure of registration as an OCI and granting an OCI Card may take 5 to 6 months. An applicant must present in person along with relevant documents to collect his/her OCI documents. None of the OCI documents would be sent through post or mail. An authorized person on behalf of the applicant may collect the OCI documents and the passport.

When a person is registered as an OCI, a permanent ‘U’ Visa (Universal Visa) is placed on his/her passport in the form of a sticker. Along with this visa, an OCI registration booklet will be provided to the OCI Card holder. On every visit to India, the overseas citizen of India would have to show the U visa on his foreign passport at the port of entry. In case the passport expires, the U Visa can be transferred to the new passport. However, until it is transferred, the old passport must be retained and produced on every visit to India.

Renunciation of Overseas Citizenship of India Card

An OCI Card is valid for the life of the holder. However, an OCI Card may renounce his/her OCI card by making a declaration and submitting it to the Indian Embassy or Mission in their home country where the OCI registration of such person was accepted. After receiving such declaration, the Indian Embassy may issue an Acknowledgement Form XXII A under Section 7C of the Citizenship Act, 1955. Once the person has ceased to be an Overseas Citizen of India, every minor child of such person shall also cease to be an OCI.

Cancellation of Overseas Citizenship of India Card

Section 7D of the Citizenship Act, 1955 provides that the Central Government may cancel the registration of an OCI card holder under certain circumstances. If any person registers as an OCI by means of fraud, false representation, or concealment of any material facts, the OCI status of such person will be cancelled. If the Overseas Citizen of India shows disaffection towards the Constitution of India, then the OCI card may be cancelled. If it is ever found that an Overseas Citizen of India has, during any war in which India may be engaged, unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business or commercial activity that was to his knowledge carried on in such manner as to assist an enemy in that war, or the Overseas Citizen of India has, within five years after registration as an OCI, been sentenced to imprisonment for a term of not less than two years, then the Central Government of India may cancel the registration of an OCI Card holder. Also, if the Government of India is of the view that it would be necessary to do so in the interest of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public, an OCI registration of a person may be cancelled. Once a person’s OCI status is cancelled, he/she would be blacklisted for all future visits to India.

Conclusion

An OCI Card provides practical advantage to its holder in traveling to India for business or employment. It also provides them with better legal rights while acquiring real estate and other moveable or immoveable properties in India without obtaining approvals from the Reserve Bank of India. This scheme was mainly launched to benefit the Indian Diaspora and provide them with hassle-free travel to their motherland. The number of OCI applications is on the rise. In 2006, the number of OCI cards issued was 6,279 whereas 10,457 OCI cards were issued in 2009. We expect that in the years to come, many more foreigners of Indian ancestry will opt for Overseas Citizenship of India cards.

Sudhir Shah is an Advocate based in Mumbai, India. He can be contacted at sudhirshah@sudhirlaw.com.